Baker Kavanagh Architects Pty Limited v Waverley Council

SOLICITORS Staunton Beattie

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10967 of 2004 BAKER KAVANAGH ARCHITECTS PTY LIMITED v WAVERLEY COUNCIL

Judgment 1 In these proceedings Waverley Council ("the council") nominates the following question of law relating to the construction of the Waverley Local Environmental Plan 1996 ("the LEP") for answer by the Court:- Whether on the true construction of the Waverley Local Environmental Plan 1996 ("WLEP") the development the subject of the Development Application DA 050/04 is permissible or alternatively is prohibited.

2 The applicant submitted a development application numbered 050/04 ("the DA") to the council on 5 February 2004. The DA relates to premises described as lot 1 in deposited plan 569130 ("the land") which are also known as 67-79 Denison Street, Bondi Junction. There is an existing church on the land ("the church building"). The DA proposed the adaptive reuse of the church building for residential purposes, namely as two units and the construction of four additional townhouses on the land. The land including the church building is a heritage item under the LEP. The land is zoned "Zone No 5(a)Special Uses" under the LEP.

3 The relevant legislative provisions are set out hereunder. Clause 10 of the LEP relevantly provides:- 10 Zone objectives and development control table (1) The following development control table states for each zone: (a) the objectives of the zone, (b) the development which is allowed without development consent, (c) the development which is allowed only with development consent, and (d) the development which is prohibited. (2) The Council shall not grant consent to the carrying out of any development within a zone unless the Council is satisfied that the development meets one or more of the objectives of the zone. 4 The "Development Control Table" within cl 10 of the LEP, contains the following provision relating to "Zone No 5(a)Special Uses":-

Zone No 5 (a) Special Uses 1 Objectives of zone The objectives of this zone are: (a) to ensure the adequate provision of land for community services and infrastructure, and (b) to ensure that development of land in this zone does not adversely affect the amenity of adjoining land. 2 Without development consent Exempt development. 3 Only with development consent Development for the purpose of: advertisements; the particular land use indicated by red lettering on the Zoning map, (including land uses ordinarily incidental or ancillary to the particular land use indicated on the Zoning map); child care centres; community centres; drainage; open space; roads; utility installations (other than gas holders or generating works). 4 Prohibited Any development not specified in Item 2 or 3.

5 Clause 45 of the LEP provides:- 45 Protection of heritage items, heritage conservation areas and relics (1) The following development may be carried out only with development consent: (a) demolishing, defacing, damaging or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area, or (b) altering a heritage item or a building, work or relic within a heritage conservation area by making structural changes to its exterior, or (c) altering a heritage item or a building, work or relic within a heritage conservation area by making non-structural changes to the detail, fabric, finish or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect its heritage significance, or (d) moving a relic or excavating land for the purpose of discovering or moving any such relic, or (e) erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area. (2) Development consent is not required by this clause if the Council is of the opinion that the proposed development would not adversely affect the heritage significance of the heritage item or heritage conservation area. (3) When determining whether a development application is required by this clause, the Council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area. (4) The Council may refuse to grant a consent required by this clause until it has considered a conservation plan so as to enable the Council to fully consider the impact of the proposal on the heritage significance of the item and its setting, or on the heritage conservation area.

6 Clause 50 of the LEP provides:- 50 Conservation incentives

(1) The Council may grant consent to the use, for any purpose, of a building that is a heritage item or is within a heritage conservation area, or of the land on which the building is erected, even though the use would otherwise be prohibited by this Plan, if it is satisfied that: (a) the proposed use would not adversely affect the heritage significance of the item or heritage conservation area, and

(b) the conservation of the building depends on the granting of consent. (2) When considering an application for consent to erect a building on land on which a heritage item is located or on land within a heritage conservation area, the Council may, for the purpose of determining: (a) the floor space ratio, and (b) the number of parking spaces to be provided on the site,

exclude the floor space of the building from its calculation of the floor space of the buildings erected on the land, but only if the Council is satisfied that the conservation of the building depends on it making the exclusion. 7 Section 4 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") defines "development" as follows:- development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

The council's submissions 8 The council submits that because cl 50(1) of the LEP refers only to "use" and not the erection of a building, it permits, with consent, the use for any purpose of a building or land for a purpose otherwise prohibited by the LEP, but not the erection of buildings. Alternatively the council submits that the land which comprises a heritage item may be used for a prohibited purpose but not for the erection of a building which in turn is to be used for residential purposes. The council draws a distinction between the erection of a building and the use of the building. The council submits that zone 5(a)(3) prescribes development which may be allowed with consent. Only such development, or exempt development as prescribed by zone 5(a)(2) is permitted in the 5(a) zone.

9 The council submits that cl 50(2) of the LEP does not itself empower the council to consent to a use or purpose which is otherwise prohibited under the applicable zoning of the land nor does cl 50(2) provide power to the council for the erection of a building. The council submits that cl 50(2) of the LEP is merely a concession available for buildings which are otherwise permissible by virtue of the provisions of zone 5(a)(2) and zone 5(a)(3).

10 The council submits that cl 45 only applies where the erection of buildings is otherwise permissible under the No 5(a) Special Uses zoning. The council submits that cl 45(1)(e) of the LEP has no application.

11 In support of its submissions the council relies upon the definition of "development" contained in s 4 of the EP&A Act. Such provisions are adopted in s 4 of the Environmental Planning and Assessment Model Provisions 1980 which in turn is adopted by cl 7 of the LEP. The council submits that the definition is extensive and that cl 50(1) of the LEP has only selected subpara (a) of that provision. The council also relies upon the decision of Talbot J in Southern Highland Properties Pty Limited v Wingecarribee Shire Council [2004] NSWLEC 141 wherein His Honour at para 10 drew a distinction between the words "development" and "purpose". The council also relies upon the distinction drawn by s 81A of the EP&A Act between different kinds of development consents. It submits that the Heritage Provisions contained in Part 4 of the LEP also emphasise "development" as contained in cl 45 of the LEP, and are directed to heritage conservation, the aims of which are set out in cl 3(6) of the LEP.

12 In support of its submissions the council relies on the decision of Pearlman J in Wright v Hunters Hill Municipal Council [1993] NSWLEC 55. The applicant's submissions

13 The applicant submits that the word "use" in cl 50(1) of the LEP is to be given a broad interpretation and is not to be restricted so as to exclude other aspects of development such as the erection of a building. The applicant refers to other clauses of the LEP to show that word "use" is not to be construed narrowly.

14 Additionally the applicant submits that a purposive approach is required for the interpretation of the LEP: see Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at p 932. The applicant submits that unless "use" were given a broad meaning, it could have virtually no scope of operation.

15 Lastly the applicant submits that a relationship existed between cl 50 and cl 45 of the LEP. It claims that once permission for a use is granted by the council pursuant to cl 50(1) of the LEP "even though the use would otherwise be prohibited" (see cl 50(1) of the LEP), the applicant could then make an application for the erection of a building pursuant to cl 45(1) of the LEP because the proposed development would, by virtue of the approval under cl 50(1) of the LEP, no longer be a prohibited use. The council's submissions in reply

16 The council submits that there is no link between the operation of cl 50 of the LEP and cl 45 thereof. Findings

17 The juxtaposition of cl 50(2) of the LEP following immediately after cl 50(1) of the LEP suggests that the use referred to in cl 50(1) directly relates to cl 50(2). Clause 50(2) of the LEP specifically contemplates the erection of a building on land on which a heritage item is located or on land within a heritage conservation area and allows the council a discretion in respect of floorspace and the number of parking spaces. Contrary to the council's submission cl 50(2) of the LEP does not suggest that such clause is only directed to development which may be allowed with consent as prescribed in the Zone No 5(a)Special Uses. The concessions provided by cl 50(2) of the LEP suggest an application applicable to development wider than that permissible with consent under the 5(a) zoning.

18 Based upon such interpretation the word "use" contained in cl 50(1) of the LEP is to be interpreted liberally to include "development". Whilst the council relied upon the definition of "development" as contained in the EP&A Act, the Court is satisfied that the word "use" is not to be construed in accordance with that definition. To do so would result in an interpretation which would be unduly narrow and which would provide negligible scope for the operation of cl 50(2) of the LEP. That is, if cl 50(1) of the LEP only applied to use in the sense submitted by the council, cl 50(2) which provides an additional concession for the development proposed in cl 50(1), would have limited operation, taking into account the nature of that development.

19 The Court has considered the decision of Talbot J in Southern Highland Properties and of Pearlman J in Wright. Each decision turns upon different provisions and accordingly are not relevant to the interpretation of cl 50 of the LEP.

20 The council submitted that cl 50(2) of the LEP does not invest the council with power to grant consent for the erection of a building and that such power only lies in cl 10 of the LEP by virtue of the development control table (zone 5(a)(3)). However construing the word "use" expansively, the power is contained in cl 50(1) of the LEP.

21 In view of these findings it is unnecessary to determine the other grounds relied upon by the applicant.

22 Accordingly, the answer to the question of law asked of the Court is as follows:- On the true construction of the Waverley Local Environmental Plan 1996 the development the subject of the Development Application DA 050/04 is permissible.

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